Rand Paul is No Barry Goldwater on Civil Rights

20 May 2010

Posted by Bruce Bartlett

Rand Paul, son of legendary libertarian Congressman Ron Paul, for whom I worked in the 1970s, is now the official Republican nominee for the U.S. Senate from Kentucky. Perhaps unfortunately for him, he did not get a great deal of national press scrutiny during his primary campaign because he was an outsider that many in the national press corps thought could not win. Now that he has, they are making up for lost time. And Rand has accommodated them by repeatedly saying that he would not have voted for the Civil Rights Act of 1964 on libertarian grounds: private businesses should not be forced to serve African Americans if they so choose. Presumably, market pressure will eventually force them to be more accommodating. If it doesn't, then so be it, Rand believes.

Both Rand's supporters and critics point to Senator Barry Goldwater's principled opposition to the Civil Rights Act of 1964. However, according to Rick Perlstein's excellent book, Before the Storm: Barry Goldwater and the Unmaking of the American Consensus, Goldwater's opposition to the Civil Rights Act was based entirely on constitutional concerns. He had been told by both William Rehnquist, then a private attorney in Phoenix and later chief justice of the Supreme Court, and Robert Bork, then a professor of constitutional law at Yale, that it was unconstitutional. Bork even sent him a 75-page brief to that effect.

To be sure, the Rehnquist-Bork position was not a lame rationalization for racism. It was rooted in the fact that the Civil Rights Act of 1964 essentially replicated the Civil Rights Act of 1875, which was enacted by a Republican Congress over strenuous Democratic opposition. However, in 1883 the Supreme Court, then it its most libertarian phase, knocked down the 1875 act as well as many other Republican measures passed during Reconstruction designed to aid African Americans. The Court's philosophy in these cases led logically to Plessy v. Ferguson in 1896, which essentially gave constitutional protection to legal segregation enforced by state and local governments throughout the U.S.

As we know from history, the free market did not lead to a breakdown of segregation. Indeed, it got much worse, not just because it was enforced by law but because it was mandated by self-reinforcing societal pressure. Any store owner in the South who chose to serve blacks would certainly have lost far more business among whites than he gained. There is no reason to believe that this system wouldn't have perpetuated itself absent outside pressure for change.

In short, the libertarian philosophy of Rand Paul and the Supreme Court of the 1880s and 1890s gave us almost 100 years of segregation, white supremacy, lynchings, chain gangs, the KKK, and discrimination of African Americans for no other reason except their skin color. The gains made by the former slaves in the years after the Civil War were completely reversed once the Supreme Court effectively prevented the federal government from protecting them. Thus we have a perfect test of the libertarian philosophy and an indisputable conclusion: it didn't work. Freedom did not lead to a decline in racism; it only got worse.

Sadly, it took the Supreme Court more than 50 years after Plessy before it began to undo its mistake in Brown. This led to repeated efforts by the Eisenhower administration to enact civil rights legislation, which was opposed and gutted by Senate Democrats led by Lyndon Johnson. But by 1964, it was clear to Johnson that the tide had turned. The federal courts were moving to dismantle segregation to the extent they could, and the 1963 March on Washington, the murder and beating of civil rights demonstrators in the South and growing awareness of such atrocities changed the political climate and made the Civil Rights Act of 1964 possible--despite the filibuster against it by Senator Robert C. Byrd, who still serves in the Senate today.

If Rand Paul were saying that he agrees with the Goldwater-Rehnquist-Bork view that the Civil Rights Act of 1964 was unconstitutional and that the Supreme Court was wrong to subsequently find it constitutional, that would be an eccentric but defensible position. If he were saying that the Civil Rights Act were no longer necessary because of the great strides we have made as a country in eradicating racism, that would also be defensible. But Rand's position is that it was wrong in principle in 1964. There is no other way of interpreting this except as an endorsement of all the things the Civil Rights Act was designed to prohibit, as favoring the status quo throughout the South that would have led to a continuation of segregation and discrimination against African Americans at least for many more years. Undoubtedly, changing mores would have broken down some of this over time, but there is no reason to believe that it would have been quick or that vestiges wouldn't still remain today. Indeed, vestiges remain despite the Civil Rights Act.

I don't believe Rand is a racist; I think he is a fool who is suffering from the foolish consistency syndrome that affects all libertarians. They believe that freedom consists of one thing and one thing only--freedom from governmental constraint. Therefore, it is illogical to them that any increase in government power could ever expand freedom. Yet it is clear that African Americans were far from free in 1964 and that the Civil Rights Act greatly expanded their freedom while diminishing that of racists. To defend the rights of racists to discriminate is reprehensible and especially so when it is done by a major party nominee for the U.S. Senate. I believe that Rand should admit that he was wrong as quickly as possible.

Addendum

The gist of the libertarian critique of this post, both here and on other blogs, seems to be that since segregation was enforced by the states it proves nothing about whether a libertarian society would lead to a decline in racism. Fine. But it doesn't address the original point of this post, which relates to the Civil Rights Act of 1964. Without it, what force was going to make the Southern states drop their racist laws? As I point out, we had an almost 100 year test of whether market/social forces were capable of changing the laws and customs in the Southern states and eliminate segregation. It didn't happen and there's no reason to think it was necessarily ever going to happen if the Southern states were left to their own devices. I believe that federal intervention was critical to eliminate the racist laws of the Southern states that restricted the freedom of African Americans. Restricting the freedom of racists to discriminate seems to be to be a very small price to pay and that on balance CRA greatly expanded aggregate freedom.

Links

Jacob Sullum of Reason magazine completely misunderstands me here. A. Serwer of The American Prospect correctlyresponds here, saving me from having to do so. David Bernstein criticizes me here.

I applaud this column. With reservations. America's beastly history of racism and Jim Crow is a tale that needs always to be told, and never forgotten. But those who thought the 1964 Civil Rights Act unwise think it only gave voice to anti-racist sentiments of its day which already reigned. As law, these critics said, it would prove socially destructive—evening the score is not what the "equal protection of the laws" means. Critics of the 64 Act posit that after 100 years, liberty in fact had worked, if very slowly (evolution is slow, after all) to bring us to consensus on opposition to racism. The 64 Act only symbolized and restated the existing cultural shift. Congress, unquestionably (even Barney Frank says so) is always and only reactive. It has little ability in edicts to change people. Bills only express what is already culturally afoot. So the Pauls essentially reiterate the argument that, lovely narrative and superb intentions aside, the 64 Act was "bad law." Richard A. Epstein's masterful book, Forbidden Grounds, describes this legal argument more fully.

Law does not change people. People change law. We can't rerun history now and find out if we would have been better off or worse off without the 64 Act. It depends on whether you think the threat of litigation was still needed in 1964, and whether that which ensued did more good, or harm, and how much racism was really still around by 1964. Some believe the 64 Act only gave rise to new ills, a new corrosive culture of resentment, entitlement, lust for payback and revenge. New legalized unfairnesses in the form of affirmative action. They argue, not entirely without reason, that new injustices do not cancel out the old.

It's widely acknowledged that young Americans have grown away from anti-gay sentiment. But that's not a lot of comfort to the individual who is disinherited from their same-sex partner's will in 2010 or 2009. You say "evolution is slow," as though oppressed classes just need a little more patience in the face of poverty and stigma. If we're relying on people voting with their wallets to force change, it's hard to exert a lot of power when you're a numerical minority that doesn't have a lot of money.

When could this evolution ever be fast enough for people suffering from discrimination?

Not really sure where I stand on this argument but at least Mr. Paul's position should be argued against, not a strawman.
It is implicit in his statements that he would have voted for a CRA that prohibited public but not private discrimination.
Mr. Bartlett etal then proceed to counter Mr. Paul by arguing that Jim Crow didn't disappear on it's own. Of course it didn't, it was state policy, but it is quite possible that had the state enforcement of public segregation been abolished private segregation would have withered as well. You can make the theoretical argument that it wouldn't but it is certainly not dispositive to use the actual state enforced policies of Jim Crow and Plessy to counter Mr. Paul's position; it's not even responsive to his position.

He has made it clear that although he agreed with most of what CRA did he would have voted against it. That's not a strawman, that's his position. I think it's juvenile to believe that a senator can never vote for a piece of legislation unless he agrees with 100% of it.

Libertarians are authoritarians. They'll deny it, of course, but it is true. They worship the authority of their philosophy and try to punish anyone who goes against it (as they are trying to do now to Mr. Bartlett).

And when real world examples show just how ridiculous libertarianism is, they start making excuses. They take the example out of context, deliberately misconstrue it, or claim that the people involved strayed from the true path of libertarianism. Just look at how the libertarians up-thread are bloviating about Mr. Bartlett's point.

Many of them are setting up the strawman that Mr. Bartlett claimed Jim Crow was actual libertarianism, when he wrote quite clearly (and accurately) that it was merely the result of libertarian philosophy.

Many of them are claiming that Jim Crow was still government action because the state and local governments passed laws enforcing it, ignoring the social reasons for that and conveniently forgetting how much they always claim to like leaving things up to state and local governments.

And on and on and on.

Libertarianism is a foolish, failed utopian ideology, no more practical than Communism.

I have lived in Kentucky and I am fan of Rand Paul. I don't know why he would want to pick this fight but I would guess that liberals knew libertarian weaknesses and wanted to pick at the most controversial issues.

Maddow kept asking if Martin Luther King shouldn't have been allowed to sit at Woolworths. I checked and Woolworths had already been desegregated. That happened in 1960 without Federal legislation. The Montgomery and Tallahassee bus boycots had already been successful by then too. It appears that most of the country had already desegregated by the time the Civil Rights Act of 1964 passed.

The sit in movement started in 1958 and it swept through several states. We shouldn't act like 1964 changed everything because most of it had already changed and the outliers were destined to be dinasours in my opinion. I don't think we would have widespread segrated lunchcounters today if 1964 had never happened. Would somebody do it if it was legal? Probably.

You say that "Undoubtedly, changing mores would have broken down some of this over time, but there is no reason to believe that it would have been quick or that vestiges wouldn't still remain today. Indeed, vestiges remain despite the Civil Rights Act."

I don't think that is true. Things were changing quickly between 1958 and 1964 despite no civil rights act. And you vestiges of racism still remain today anyway. Maybe legislation isn't always the cure. In fact, legislation and big government is what gave us Jim Crow and Segregation in the first place. The bus owners were forced into their policy. As Thomas Sowell has pointed out, they didn't want to anger their customers. Some complied only after being threatened with jail time. And most segregated lunch counters were the law too. If anything the government was more of the problem than the solution where segregation was concerned.

And look at segregation today. Innercity schools are segregated more in my town now than they were 40 years ago. You can't stop first Amendment speech either. Father Phelps says "God Hates Fags". No gays are going to that church. A Georgia retaurant puts Obama and the N-Word on a sign. Black people aren't eating there.

You have vestiges of government like affirmative action and the community reinvestment act that also create friction and problems in our society. We take a lot of liberties with private property and free association when it comes to civil rights. How much did the community reinvestment act just cost us?

I would probably have voted for the 1964 act, but it appears that most businesses were already desegregated by the time it was passed. If anyone can point me to some literature with a breakdown it would be appreciated. I think we might be making the act into something it is not with respect to the provisions regarding private property. I could be wrong.

"And that's leaving aside that you've deliberately avoided Bruce's point by switching from receiving services to producing goods, where there was a much weaker societal taboo. No one really cared if their cotton was picked by a white or black man, but it was culture that demanded that blacks never get out of the kitchen while whites could wait tables, and that blacks pick up their food at the back while whites ate inside. That wasn't the law, that was culture."

The resistance of southern streetcar companies to ordinances requiring them to segregate black passengers vividly illustrates how the market motivates businesses to avoid unfair discrimination. Before the segregation laws were enacted, most streetcar companies voluntarily segregated tobacco users, not black people. Nonsmokers of either race were free to ride where they wished, but smokers were relegated to the rear of the car or to the outside platform. The revenue gains from pleased nonsmokers apparently outweighed any losses from disgruntled smokers.

Streetcar companies refused, however, to discriminate against black people because separate cars would have reduced their profits. They resisted even after the passage of turn-of-the-century laws requiring the segregation of black people. One railroad manager complained that racial discrimination increased costs because it required the company to “haul around a good deal of empty space that is assigned to the colored people and not available to both races.” Racial discrimination also upset some paying customers. Black customers boycotted the streetcar lines and formed competing hack (horsedrawn carriage) companies, and many white customers refused to move to the white section.

In Augusta, Savannah, Atlanta, Mobile, and Jacksonville, streetcar companies responded by refusing to enforce segregation laws for as long as fifteen years after their passage. The Memphis Street Railway “contested bitterly,” and the Houston Electric Railway petitioned the Houston City Council for repeal. A black attorney leading a court battle against the laws provided an ironic measure of the strength of the streetcar companies’ resistance by publicly denying that his group “was in cahoots with the railroad lines in Jacksonville.” As pressure from the government grew, however, the cost of defiance began to outweigh the market penalty on profits. One by one, the streetcar companies succumbed, and the United States stumbled further into the infamous morass of racial segregation."

The institutionalization of slavery (a deprivation of liberty to a class of human beings) was the result of government intervention. Slavery was an overly regulated market, with government creating winners and losers in commerce, but more importantly for basic human rights. It is logical that there would have to be a legal (government intervention) solution and not simply a market solution.

Markets can clean things up, but they cannot simply clean up the mess of bad law in a timeframe that matters to real human beings. People who were born at a certain time shouldn't have to wait for the market to solve it all, when they would be dead before the market could work it out. Paul's problem is that he handcuffs himself with ideological purity. He could have said that the Civil Rights legislation was an exception that proves the rule that markets can sort things out. Markets didn't solve the problem, because free markets didn't create the problem.

There is more sense here than in all of Bruce's lengthy, and personally motivated it would seem, screed. The problem is not that Rand Paul is a closet slaveholder, it's that he expects too much of a libertarian outlook in terms of overcoming a societal apparatus rooted in the law, custom, aristocratic power, and racial demagoguery.

That said, me, personally, I'll worry about how wrong Rand Paul is when there are 49 other libertarian senators voting with him.

"Markets can clean things up, but they cannot simply clean up the mess of bad law in a timeframe that matters to real human beings. People who were born at a certain time shouldn't have to wait for the market to solve it all, when they would be dead before the market could work it out. "

Love you Barry.

Now, could we clean up the mess of bad law and regulatory capture (SEC)?

1) reinstate uptick rule in the markets -- it worked for 70 years, and when repealed we had market collapse within 2 years, 2) make naked shorting illegal, as it is in many countries -- it contributed to rapid collapse of Lehman, Bear Stearns, and will take down other companies if not corrected 3) regulate hedge funds, 4) new regulation/elimination of derivatives and CDS (weapons of mass financial destruction)

Could we do this before I die? The bill going through Congress isn't enough -- it ensures that we'll have another meltdown in the next 5-10 years.

Rand Paul's philosophy wouldn't fix this mess, not ever. He'd let us all die poor as the markets continue their wild gyrations (let the market work it out) and innocent people are taken down all over the world.

His ideology doesn't take into account the flawed human condition, particularly greed.

Libertarianism sounds nice, but in practice it is a disaster (see Somalia).

Above all, how can you expect to be a mainstream politician and claim Denny's can actually exclude black people. Rednecks these days believe in basic civil rights but Rand Paul doesn't. Outside the mainstream? You joking? Outside the universe. What particularly bizarre sort of moron is this guy?

Aside from all that, would you let a twitchy nitwit like that operate on a vital organ? But really, does Rand Paul get Medicare money for any of his operations? I bet he has, in which case, he's the most despicable Republican hypocrite since Newt pulled that Contract On America crap.

These are people that treat a repressed psycho-sexual wierdo as a goddess. She could not write to save her life, she never took responsibility for her own life, and the main philosophical idea you can get from her drivel is wanting her bosom ripped. Ayn Rand was an obscene cartoon about lust, and Ron Paul seems to have named his kid after her.

Posted by Yet Another calibanBudget Wonk on May 20th, 2010 at 11:26 pm.

Is it just me, or does Dr. Paul use the term "institutional racism" in reference to anti-discriminatory laws themselves? I think his point (a rather adolescent one) is that if we just remove any mention of race, gender, sexual orientation, creed, from anti-discrimination laws, everything would be hunky-dory. The notion that he's so much less racist than a supporter of the germane sections of Civil Rights Act because he wants the law to be colorblind is just silly.

Codifying our differences is evil, he seems to say. I agree, except that it's a merely intellectually uncomfortable, and ultimately necessary, evil. And it pales in comparison to the darkness and brutality that was reality for millions of Americans before they were enacted.

I, for one, don't spend very much time fretting about the loss of discriminatory liberties I (or anyone else) could be enjoying, if only things went a little differently in 1964.

"Mrs Clinton, trying to make a point about presidential leadership and Mr Obama’s constant references to Dr King, the civil rights icon, said: “Dr King’s dream began to be realised when President Lyndon Johnson passed the Civil Rights Act of 1964. It took a president to get it done.”

Mrs Clinton has since tried to clarify the comment, but the damage was done. Mr Clyburn, who had previously said that he would stay neutral, told The New York Times that he had been “bothered a great deal” by the remarks and was rethinking his position."

Just a passing thought. When Hillary trupeted the federal legislation she was crucified. Is the great government the source of all this pride, or is it great Americans like Martin Luther King and the countless numbers (black and white) that marched with him?

The people that act like Rand Paul would strip civil rights or that we would be back to segregation are batty.

I am not 100% on either side, but I will say it seems clear that using force to solve social problems can alleviate suffering faster than market forces. The key then is (as always) finding the right BALANCE. Libertarians don't believe in balance, they are fundamentalists.

And Rand should have really had a better answer for this question than well crafted evasions. It appeared that he hadn't really thought about it that much. If you're going to take such a controversial position, you damn well better have firm answers to back it up.

I want to like both Ron and Rand Paul; I really do, but I just cannot bring myself to do it. It seems there is always something sinister lurking under the surface, or around the next corner when it comes to anything involving these two.

If they don’t want to be labeled as racists or kooks, then they should stop associating with racists and kooks. I mean really, how many times can they go on Alex Joneses’ program and sit idly by as he rants about the government being behind 9/11; or the Bush/Obama FEMA camps; Bilderberg Group conspiracies; and so on, before the public has no choice but to believe they are sympathetic to his views. Sure, they always say, “Well that’s not exactly how I see it.” Ok then, how do you see it? And if you think he is wrong, why do keep going on his show?

There is a reason why their responses are always ambiguous. It’s called money. The elder Paul has admitted as much. Remember those news letters, the ones that bore his name, or of which he was the editor, but yet he supposedly knew nothing about their content. Well, there are sources that have gone on the record and said that not only did he know about them, but he often commented he couldn’t believe how much money he raised from the people who subscribed to them. The younger Paul used the same mailing lists and list serves to finance his "money bombs” and campaign.

To save space, I will not go into details about their economic ideas and plans. You can find thousands of articles describing it at Lew Rockwell’s site and the Mises Institute site. However, I would invite everyone to conduct an experiment. Go find a Paulite, and calmly and politely say to them, “You know, based on history, I’m not convinced shuttering the Federal Reserve and going back on the gold standard is going to cure all that ails the US economy. Be prepared, you will most likely be called a series unfriendly names. You can then point out that the US economy was in recession or depression over forty percent of the time during the last period in which there was no Federal reserve and the currency was tied to the gold. This time they most likely tell you that you either don’t know what you are talking about, or that the Pauls would design a better gold standard.

Having said all of that, I will be forever grateful to Ron Paul for having the courage to stand up to the war lobby during the last election. Like I said, I want to like both of them, but before I can do so, they need to reexamine both the people with whom they associate and some of the imbecilic ideas they have.

If libertarianism is a belief that in an organized society you have the liberty to do what you want even if its committing injustice towards other people and the goverment should not take away such liberties , then this is an advocation of the law of the jungle and that in itself is an insult to the jungle.
Many people who are racists take cover under such ideologies
and you may say that the nazis had the right to exterminate millions of people and the rest of the organized societies should respect their freedom to do so. Of course these idiots (libertarians) would change there mind quickly if the shoe was on the other foot

The "gist" of the critiques of your post are that a) you conflate libertarian arguments with states' rights arguments and b) in an effort to attack Rand Paul, you made many inaccurate or misleading claims about law, history, the Supreme Court and libertarian views. Had you stuck to Rand Paul's arguments, and not made the broader swipes against libertarians, I doubt your post would have gotten this reaction.

J.Adler wrote: "not made the broader swipes against libertarians, I doubt your post would have gotten this reaction."

His comments were accurate. You're doing what most libertarians do when they defend their ideology, disown the bad actors. I recall in 2006 when many thought the economy was doing well, Bush was praised by many libertarians. We heard that tax cuts not only created prosperity but paid for themselves. Then when the economy tanked, these same libertarians criticized Bush for engaging in social engineering and trying to help poor people own homes.

For several years I have paid close attention to libertarianism. And like any ism, it covers more ground than can be realistically understood in its entirety. Some people believe that libertarianism is for rich white guys only. No, there are also women, in fact women with no paid work in sight, who see the benefits of libertarianism. Why is this? Two things converge that take away jobs. First, the fact that too many important human economic activities are not represented by money, as only the healthiest and best can be paid. Second, the regulations in place which mean that when people can not find a job, they also can not create jobs through self employment. The libertarianism I see that has a chance in the future, is the libertarianism that could return people to the economic communities and workplaces that have inadvertantly rejected them in ways that are scarcely even recognized.

Probably out of my league here but I'd like to make a couple of points. My understanding is that Mr. Paul has stated he would have voted for the CRA but would have argued for modifications. A lot of congressmen and senators did just that but having failed, voted in the affirmative anyway. That's just ordinary lawmaking.
The constitutional issue with the act was largely it's unprecedented use of the Commerce Clause to accomplish the restrictions on private businesses. The abuses that have followed are too numerous to even contemplate. The 14th amendment should have been sufficient to accomplish the desired outcomes. Let's not forget that the discrimination perpetrated by private actors was enforced by the states through local sherrifs, town councils and governors. Whether or not black folks would have fared better or worse without the opportunity to sue Woolworths we'll never know. What we do know is that civil litigation based on the CRA and it's successors has created a huge business and made a whole lotta lawyers very wealthy but hasn't added much to a productive economy.
Plessy seems to be a pretty straightforward misreading of the 14th amendment which obviously had modified the 10th. It was "settled law" for many years until a different court had the good sense to throw it out. Brown 1, it seems to me, was wholly compatible with not only the constitution but classical liberalism. Brown 2, on the other hand, led to the decades long debacle of forced "integration" which has literally destroyed many once great cities, Detroit and Kansas city come to mind. Are the perported constitutional underpinnings of every title in the CRA settled law forever? Or will a future court decide that it's outlived it's usefulness?
Lastly, I keep hearing that a libertarian world view is not "nuanced" enough and "too rigid" for the real world. It occurs to me that the problem with American politics is that it's too nuanced. The voters are wiilling to do whatever Rachelle or Rush tell the to do, elected officials will do whatever they have can to get re elected and judges do whatever the hell they feel like. Classical liberalism may not be perfect but (to quote John Goodman in The Big Lebowski) at least it's an ethos and in my view the most successful one we've come up with so far. Wthout some set of invioable principles there is no rule of law. Sometimes you gotta hold your nose and hope for the best.

I believe that Grover Norquist, and I _think_ Karl Rove, has/have stated that the goal is to get things in America back to the paradise that was 1895....

More to the point, with time I have grown more sceptical about what the kind would characterise as principled stands: I think temperament comes first, and rationalisation later (if at all). That is to say, for example, that Southern Democrats in the middle of the last century didn't give a hang about arrogation of power by Big Gummint when it meant spoils to be distributed among (mostly) their white constituents, but the moment that government started threatened to interfere with their enjoyment (and very enjoyable it was) of bigotry and it's fruits---in particular the buying-off of poor whites with high status relative to the darkies---all of a sudden it was 'States rights! States rights!!'

Similarly, I have met no Libertarians who said that they were sad that Government "couldn't _really_ help the poor"; I have rather repeatedly encountered an Otto-level Nietzscheanism/Spencerism that is disgusted at the prospect of rachmones for these losers, and has found an algorithmic ideology to quiet the natural rebellion of conscience against hardness-of-heart.

(I, of course, in the formation of _my_ thought, am completely immune to this syndrome, comfortingly-purring though it may be.)

Foolish post Bruce. It's pretty clear that Paul disagrees with the ruling in Plessy. This "100 year test" you write of never happened because the ruling in Plessy at least partially denied the opportunity for that test. There weren't any market forces allowed to work because of state laws upheld in Plessy. Plessy also made it harder to change state laws because it gave them it's blessing. The correct ruling in Plessy would have negated the need for the 64 Act. Paul also has said he supported striking of those state laws by the Feds on 14th amendment grounds in the 64 Act. Without Plessy state laws would have changed. Perhaps prior to 64. For you to write that Plessy was a libertarian ruling is preposterous.

I would agree that Federal intervention was necessary to repeal racist and unconstitutional State laws. In fact, I would argue the purpose of the Federal government is largely to protect the liberties of citizens from the force of State governments (which are supposed to be responsible for domestic policy). However, I agree wholeheartedly that government force should never be used to impose association or violate private property.

For instance, does a person have a right to not invite you to their house for tea because they don't like you? Do they have to qualify their reason for the dislike? The answer to the first is yes, and the second is no. How is a privately owned business any different? You can't claim to protect private property and freedom of association and then violate it by dictating terms. It's one or the other.

And to say that no stores would cater to African Americans is misleading. For instance, my great-grandfather owned a grocery store in a largely black part of Dallas. He catered virtually exclusively to African Americans and hired a number of African Americans. He also allowed many people to make purchases on store credit, a practice which would get him shut down today. I can only assume there were similar stories throughout the South and that ultimately a combination of greed and time would end segregation much less violently then it actually occurred (well, was attempted, segregation is still very much voluntarily in place).

I think it's naive to think that the only thing necessary to eliminate discrimination in the South was abolition of state laws that mandated discrimination. Over the course of many decades these laws changed society and the economy from what would have been the case had the state laws not been enacted. Moreover, much of what constituted discrimination in the South was not mandated by law, but by economic and social pressure. It's ridiculous to think this would have simply melted away once the state laws were repealed. The proof is that there is still a lot of discrimination despite the Civil Rights Act. To be sure, it is much less today than it was in 1964, but much of that progress was caused by the Civil Rights Act. I think those who think that protecting the property rights of racists was more important than removing the yoke of discrimination from a tenth of our population are callous and cruel.

"I think those who think that protecting the property rights of racists was more important than removing the yoke of discrimination from a tenth of our population are callous and cruel."

So, if you throw a house party and invited the whole neighborhood but not that one guy cause you don't like him, the police should force you to allow him in because you're being callous and cruel? Whether you based your dislike on race, religion, personal distaste is irrelevant, you discriminated against him.

Now, what if you charged $25 to attend the party but made it clear he wasn't welcome? Now, should a cop force you to let him in and take his money? Or is this discrimination ok because it is directed against a specific individual instead of a general group?

When can we discriminate and when can't we? Can we choose our friends but not our patrons? Can non-profits discriminate but not for-profits (ie can a church discriminate but not a restaurant)? And if so, why? When do we have freedom to choose whom we serve and associate with and when don't we?

The very third and fourth comments are absurd. Ray states that “the left, by advocating no rights for all they then claim it protects rights for some” without endowing on us any example of "the left" advocating "no rights". Ray doesn't deign to explain that putting a sign in your window that says "NO BLACKS ALLOWED" is a "right" but since he provides no explanation at all, that would be the proper inference. And J.T. states that “Rand Paul is not saying that the government should not intervene to prevent lynchings“ as though somebody had claimed or even implied he said this. The comments on this excellent article that disagree with him are obviously a waste of time to read.

The CRA of 1964 had 10 Titles (Sections). Goldwater objected to Title II and Title VII.

Rand Paul, on NPR, said he "wasn't that familiar with the details of the bill." After reading the bill, I don't think many people are that familiar with it.

Title II established the right of injunctive relief in segregation of public accommodations associated with interstate commerce (using a fairly broad definition).

Title iII dealt with desegregation of public facilities, including sporting venues, movie houses, etc.

I am no lawyer, but find the details inherently interesting. Title II seemed to recognize that segregation in interstate travel was already illegal, but the means of enforcement was lacking. Title II contained significant discussion regarding relief by injunction, the Attorney General, federal courts, etc.

However, Title III seems inherently more intrusive.

The point of this is that Paul said he was for "most of the bill" as did Goldwater. However, the idea that Title II and Title VII are materially different from other sections is difficult for me to understand. I'd like to see Bork's brief for Goldwater to get a sense of what they really were concerned about.

To be against the 64 Act is to be clearly on the wrong side of history. If a person feels compelled to take a principled position that puts them so clearly out of step with the majority, I think it is essential to clearly and carefully articulate that position.

Many businesses in the South welcomed a law forcing them to serve black people because it prevented them from being boycotted or even fire bombed by racists if they were seen as doing so voluntarily. Those who defend the rights of racists to discriminate almost never acknowledge that nongovernmental racist violence was a common method of enforcing segregation, just as torture and lynching was a standard method of keep blacks in their place.

The issue of when discrimination is legal and when it is not has still not been addressed.

Under what conditions may we discriminate and may we not? If you throw a block party and don't invite one family should the cops force you to allow them in? If you based your discrimination on their religion then should the police force you to let them in or only if you based it on their race? What if you charged for admittance to your party, then can you be forced to accommodate everyone? What if you set up a bed and breakfast in your home? Then can you discriminate because it's still your home or must you be totally accommodating since it's now a business as well?

The precedent has been set that the Federal government can impose rules on whom businesses must serve so where is the line drawn between private property rights and "public accommodation" and why? Are there some permissible forms of discrimination by businesses and what are they? When can and when can't we discriminate and why?

This is the crux of Rand Paul's very limited issue with the CRA of 1964 (which the media has inflated into some sort of overall objection to the CRA as a whole, which isn't true). At what point does private property stop being private, and for whose convenience and/or uplift? Although I recognize that the societal implications aren't nearly as critical, Ladies' Night at a bar isn't theoretically anymore discriminatory than charging black customers a cover charge while giving white customers a free pass. (See http://lawprofessors.typepad.com/adjunctprofs/2007/07/is-ladies-night.html)